Federal Judge to Ohio Secretary of State: WTF

On Wednesday, U.S. District Judge Algenon Marbley hear from Ohio Secretary of State Jon Husted's public lawyers on the disenfranchisement of Ohio citizens whose provisional ballots were not properly completed by poll workers. Spoiler, Judge Marbly was pissed, and Ohio has no defense.

Ohio still hasn't counted hundred of thousands of provisional ballots more than 30,000 in Cuyahoga County. Try to contain your shock, clutch something, poor people of color live there. The provisional ballots were given to voters whose registration or identification was challenged at the polls. Ohio is required to count all the ballots by the end of the month. So it is important to get the count for accurate figures, but also because of the precedent this would set for elections in the future.

According to The Atlantic, voter rights advocates thought we had things worked out when Judge Marbley entered a consent decree:

1. acknowledge that poll workers were required to record identification offered by a voter, and
2. making Ohio responsible, and thus the ballot otherwise valid, if any poll workers made errors while collecting or transcribing the information.

Judge Marbley's decision was fair. However, late Friday at 7pm, Husted backed away from the court-order. Husted instructed local election officials to reject any ballots where the information was mistakenly recorded. We have no idea how many registered voters could be disenfranchised. But Judge Marbley is pissed so it doesn't look good for Husted.

I pulled the sections form the transcript that The Atlantic did because they are awesome. Husted's representative is Arnold Epstein. Judge Marbley begins with calling Ohio out immediately:

THE COURT: Mr. Epstein.
Mr. Epstein, would you agree that voting is the linchpin of our democracy?
MR. EPSTEIN: Yes, Your Honor.
THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

Judge Marbley later asks why they put the burden on the voters instead, which is a violation of the statutes.

It only became the voter's burden after the secretary declared it was the voter's burden and sent you in here to defend it. You haven't been able to show me any law that would justify that, nor have you shown me any facts that would require him to change it.

The Judge demands Epstein show him the language of the statute to allow for Husted's change.

THE COURT: Show me the language.
MR. EPSTEIN: I cannot find the word "shall" for you. I believe it's contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.
THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who's been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you've done. Do you honestly believe what you just told me?
MR. EPSTEIN: I do, Your Honor.
THE COURT: If you honestly believe that, show it to me, because you were -- in another context, and in this case, you have argued that it's literally not there. You have argued that the absence of the language means the absence of the law. Now you're telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I'm asking is to see it. If I can see it, I can believe it. But if you can't show it to me, then make your penumbras argument.
We're going to be transparent, and you're going to tell me -- if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it's in the penumbras because you can't point to the language. So show me where it is. Show me where it's meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o'clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.
MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

Epstein is pretty much saying Ohio has no legal argument. Essentially, the Ohio argument is it's too late now to change our plan because we can't tell which ballots are good or bad. Wrap your mind around that. There are two classifications of provisional ballots because of an unlawful directive, and Husted doesn't want to count any of them. Looks like voter suppression, smells like a felony.

Judge Marbley will have his order on Monday.